Bengaluru (Aryavarth): The Supreme Court of India has recently made a crucial judgment in Criminal Appeal No.1633 of 2023, lodged by the State of Uttar Pradesh against the accused, Sonu Kushwaha. The verdict addresses the categorization of a sexual offense committed against a child under the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).
Kushwaha was initially prosecuted for offenses punishable under Sections 377 and 506 of the Indian Penal Code, 1860 (IPC), and Section 5 read with Section 6 of the POCSO Act. He was convicted of all charges by the 8th Additional Sessions Judge in Jhansi, leading to a ten-year rigorous imprisonment sentence under Section 6 of the POCSO Act, with an additional fine of Rs.5,000. Furthermore, he received a seven-year sentence under Section 377 of IPC and a one-year sentence for the offense under Section 506 of IPC. Additional fines were also imposed for these crimes.
Following this, Kushwaha appealed the conviction (Criminal Appeal No.5415 of 2018) at the High Court of Judicature at Allahabad. The High Court amended the conviction, ruling that the crime was a penetrative sexual assault punishable under Section 4 of the POCSO Act, not an aggravated penetrative sexual assault under Section 6. Thus, the sentence was reduced to seven years with a fine of Rs.5,000.
The Supreme Court appeal examined the exact nature of the offense, given the age of the victim at the time was less than twelve years. The prosecution had established that Kushwaha had enticed the child with money to commit a sexual act. These findings were not contested by Kushwaha at the Supreme Court level.
The State, through its counsel, argued that the act committed by Kushwaha amounted to ‘aggravated penetrative sexual assault’, given that the victim was below twelve years. The counsel referred to Section 5 clause (m) of the POCSO Act, which states that penetrative sexual assault on a child below twelve years is considered an ‘aggravated’ offense.
Kushwaha’s counsel, on the other hand, contended that the respondent had already served his seven-year sentence as adjusted by the High Court. Moreover, they stated that Kushwaha had since reformed and recently married, suggesting it would be unjust to further extend his sentence under Section 6 of the POCSO Act.
Following a close examination of the definitions provided by the POCSO Act, the Supreme Court ruled that, given the age of the victim, the offense of oral sex, committed by Kushwaha did indeed constitute ‘aggravated penetrative sexual assault’. They noted that Section 5 clause (m) of the POCSO Act applied to this case, as the victim was under twelve years old when the assault occurred.
The Supreme Court ruled that the High Court had erred in not applying Section 6 of the POCSO Act, which stipulates a minimum of ten years of rigorous imprisonment for ‘aggravated penetrative sexual assault’. The Supreme Court’s landmark judgement underscores the gravity of sexual offenses against children and reaffirms the stringent measures required to deter such heinous crimes. The case sends a strong message about child protection in India, reflecting the Supreme Court’s commitment to enforce the most severe punishments under the law to safeguard the rights and wellbeing of the nation’s children.
